Medical pot limits struck down by high court

January 21, 2010

In a victory for medical marijuana users, the state Supreme Court on Thursday upheld a state law that protects them from arrest if they show police official identification cards. The court also overturned a law that limits how much pot patients can carry and how many plants they can grow.
The court unanimously ruled that the limits - 8 ounces of dried marijuana, six mature plants or 12 immature plants - conflicted with Proposition 215, the 1996 initiative that made California the first state to legalize marijuana for medical use.

Prop. 215 said a patient, with a doctor's approval, could possess an amount of marijuana that was "reasonably related to the patient's current medical needs," and set no numerical limits.

The 2003 legislation, which allowed a jury to convict a defendant who possessed or grew more than the specified amounts, "takes away from rights granted by the initiative" and is therefore an invalid amendment, Chief Justice Ronald George said in the court ruling.

But he said the possession and cultivation limits can still apply to the identification cards authorized by the same law. Holders of the cards, issued by counties, can't be arrested if they possess no more than 8 ounces of marijuana, an amount that individual counties are also allowed to increase.

A state appeals court in Los Angeles had thrown out the ID cards along with the numerical limits in a May 2008 ruling, saying they were part of the same invalid law. The state Supreme Court put the ruling on hold while it considered the case, and agreed Thursday with both a state prosecutor and a defense lawyer - a highly unusual consensus - that patients could still use the cards.

"It seems clear that the Legislature would have preferred such a result" if it had known that the mandatory possession and cultivation limits would be overturned, George said. He noted that lawmakers passed a measure in 2004 to repeal the numerical limits, but Gov. Arnold Schwarzenegger vetoed it.

The ruling overturned the conviction of Patrick Kelly, who was arrested in October 2005 at his home in Lakewood (Los Angeles County) where sheriff's deputies found seven marijuana plants and 12 ounces of dried marijuana.

Kelly had a doctor's approval to use marijuana for relief from multiple ailments, but a jury convicted him of illegal possession and cultivation after hearing that he had exceeded the limits of the 2003 law. He was sentenced to two days in jail.

The result of the ruling, said Gerald Uelmen, a Santa Clara University law professor who represented Kelly, is that a patient with an identification card can be arrested only for carrying more than 8 ounces of marijuana or growing more than the specified number of plants.

Someone without a card can be arrested for carrying any amount, if police have evidence that the person is selling marijuana or using it for nonmedical purposes, but defendants in any case can still argue that they possessed only what they reasonably needed for medical purposes, Uelmen said.

"People will have a reason to register (for an ID card) and I hope they will," he said.

A medical marijuana advocacy group expressed some qualms, however. The numerical limits provided some guidance to police and patients, and their invalidation "may have left too much discretion to law enforcement in deciding what are reasonable amounts," said Joe Elford, lawyer for Americans for Safe Access.

The case is People vs. Kelly, S164830. The ruling can be viewed at links.sfgate.com/ZJDJ.